Legal separation is a court-approved separation of husband and wife. It is not a divorce and we do not have divorce in the Philippines. Under legal separation, the marital obligations and the property relations between the spouses are ended, but the marriage bond is not dissolved unlike in divorce or annulment.

What is legal separation?

Legal separation is often sought by spouses in order to legally sever their properties from each other, although there are other ways to do this.

The spouses become entitled to live separately from each other and their obligation of mutual support ceases.

The common property of the marriage is dissolved and liquidated, but the spouse at fault shall have no right to any share of the net profits earned by their common property. This share of the net profits is forfeited in favor of the children or the innocent spouse.

Legal separation lets spouses live apart and awards net profits to the spouse without fault.

Subject to court discretion on the best interests of the child, the custody of the minor children will be awarded to the innocent spouse.

The spouse at fault becomes disqualified from inheriting from the innocent spouse whether with or without a last will and testament.

A petition may be filed at the Family Court by either the husband or the wife within 5 years of the occurrence of the ground for legal separation.

Legal separation can be granted when there are serious marital problems. Under the law, the grounds for legal separation are:

Habitual alcoholism is a ground for legal separation.

(a) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;

(b) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;

(c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;

(d) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;

(e) Drug addiction or habitual alcoholism of the respondent;

(f) Lesbianism or homosexuality of the respondent;

(g) Contracting by the respondent of a subsequent bigamous marriage, whether in or outside the Philippines;

(h) Sexual infidelity or perversion of the respondent;

(i) Attempt on the life of petitioner by the respondent; or

(j) Abandonment of petitioner by respondent without justifiable cause for more than one year.

The petition must be filed in court within 5 years from the time of the occurrence of the particular ground/s for legal separation.

Unlike annulment, these grounds can have occurred during the marriage itself.

Unlike cases for nullity or annulment, these grounds occurred during the marriage and need not have existed before that.

Yes. The following are the grounds for denying such a petition:

(1) Where the aggrieved party has condoned the offense or act complained of;

(2) Where the aggrieved party has consented to the commission of the offense or act complained of;

(3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation;

(4) Where both parties have given ground for legal separation;

(5) Where there is collusion between the parties to obtain a decree of legal separation; or

(6) Where the action is barred by prescription.

These deserve careful review.

Can your petition be denied?

Note ground (1) in particular. Condonation (forgiveness) may be either express or implied. Under Philippine law and jurisprudence, there is already implied condonation when, after a ground for legal separation becomes known, the couple resumes cohabitation as man and wife.

American cases provide the basis for our understanding of condonation.

This means that even if there were valid grounds for legal separation, if the spouses have sexual intercourse after the grounds became known then legal separation will not be allowed by the court.

Our jurisprudence on this point is lifted from old American cases:

“The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.

A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted above, clearly shows that there was a condonation on the part of the husband for the supposed “acts of rank infidelity amounting to adultery” committed by defendant-wife. Admitting for the sake of argument that the infidelities amounting to adultery were committed by the defendant, a reconciliation was effected between her and the plaintiff.

As the husband resumed relations with the wife, condonation occured.

The act of the latter in persuading her to come along with him, and the fact that she went with him and consented to be brought to the house of his cousin Pedro Bugayong and together they slept there as husband and wife for one day and one night, and the further fact that in the second night they again slept together in their house likewise as husband and wife — all these facts have no other meaning in the opinion of this court than that a reconciliation between them was effected and that there was a condonation of the wife by the husband. The reconciliation occurred almost ten months after he came to know of the acts of infidelity amounting to adultery.

In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that “condonation is implied from sexual intercourse after knowledge of the other infidelity. Such acts necessary implied forgiveness. It is entirely consonant with reason and justice that if the wife freely consents to sexual intercourse after she has full knowledge of the husband’s guilt, her consent should operate as a pardon of his wrong.”

In Tiffany’s Domestic and Family Relations, section 107 says:

Many court cases supported this interpretation of condonation.

Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the right to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer shall not again commit the offense; and also that he shall thereafter treat the other spouse with conjugal kindness. A breach of the condition will revive the original offense as a ground for divorce. Condonation may be express or implied.

It has been held in a long line of decisions of the various supreme courts of the different states of the U. S. that ‘a single voluntary act of sexual intercourse by the innocent spouse after the discovery of the offense is ordinarily sufficient to constitute condonation, especially as against the husband’. (27 Corpus Juris Secundum, section 61 and cases cited therein).

In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and of the various decisions above-cited, the inevitable conclusion is that the present action is untenable.

Consistently, conhabitation is interpreted as condonation.

Although no acts of infidelity might have been committed by the wife, We agree with the trial judge that the conduct of the plaintiff-husband above narrated despite his belief that his wife was unfaithful, deprives him, as alleged the offended spouse, of any action for legal separation against the offending wife, because his said conduct comes within the restriction of Article 100 of the Civil Code.

The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the commission of the offense, and with the knowledge or belief on the part of the injured party of its commission, will amount to conclusive evidence of condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73).

If there had been cohabitation, to what extent must it be to constitute condonation?

Single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute condonation, and where the parties live in the same house, it is presumed that they live on terms of matrimonial cohabitation (27 C. J. S., section 6-d).

Several cases are cited.

A divorce suit will not be granted for adultery where the parties continue to live together after it was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse after knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The resumption of marital cohabitation as a basis of condonation will generally be inferred, nothing appearing to the contrary, from the fact of the living together as husband and wife, especially as against the husband (Marsh vs. Marsh, 14 N. J. Eq. 315).

There is no ruling on this matter in our jurisprudence but we have no reason to depart from the doctrines laid down in the decisions of the various supreme courts of the United States above quoted.

There is no merit in the contention of appellant that the lower court erred in entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss, because in the second ground of the motion to dismiss. It is true that it was filed after the answer and after the hearing had been commenced, yet that motion serves to supplement the averments of defendant’s answer and to adjust the issues to the testimony of plaintiff himself (section 4, Rule 17 of the Rules of Court).”

This is a situation where old cases based on foreign social mores dictate the choices of today. The above discussion of old American sources was rendered by the Philippine Supreme Court in the case of Bugayong vs. Ginez way back in 1956. Social values have shifted in the last 60 years, but the condonation doctrine has not been overturned to this day. [It was lately cited by the Supreme Court in Busuego vs. Office of the Ombudsman Mindanao and Busuego, G.R. No. 196842, October 9, 2013.]

Consider also ground (4) for denying a petition for legal separation, “Where both parties have given ground for legal separation.” Consider what it means in practice.

Clean hands means that one spouse must have no fault.

The law demands that a spouse who seeks legal separation should come to court with “clean hands”. A marriage that has so broken down that both spouses have had extramarital affairs, or where each tried to murder the other, does not qualify for legal separation in the Philippines.

Somehow, this absurdity was meant in aid of marriage as “the foundation of the family” and “an inviolable social institution protected by the State.” In this case, by punishing two clearly unhappy people to remain bound together in matrimony and misery. It escapes me how turning marriage into a penalty uplifts it as a social institution.

When both parties are at fault, legal separation cannot be availed of.

In the meantime, the American states from which our law took its lead on these concepts have not remained static. Consider, for example, the marriage law of New Jersey, which revokes these grounds:

Recrimination, condonation and the clean hands doctrine are hereby abolished as defenses to divorce from the bonds of matrimony, dissolution of a civil union, divorce from bed and board or legal separation from a partner in a civil union couple, and if both parties make out grounds for a divorce, dissolution or legal separation, a decree may be granted to each; provided that nothing herein shall preclude or abrogate the responsibility of a party for the penalty provided by law for perjury or the subornation of perjury.

These disqualifications are no longer in force in at least some of the United States even as they have fossilized into hard standards in this country.

Unfortunately, these outmoded standards are still in force in the Philippines.

Anyone who wishes to file for legal separation needs to take time into account. One can expect a clear case for legal separation to be more straightforward than a case for nullity of marriage based on psychological incapacity, but it will still take time because a petition for legal separation has a cooling off period mandated by law.

A 6 months cooling off period is required before trial to give some time for reconciliation.

By law, the trial cannot commence until 6 months after the date of filing of the petition. This cooling off period is intended by the law to allow the parties to reconsider and reconcile. It is, again, in line with Philippine law’s inclination toward maintaining the marriage bond.

Atty. Francesco C. Britanico

See also: How is the marriage property divided in legal separation?
See also: A simpler way to divide conjugal property